In order to ensure all parties understand the status and implications involved, a comprehensive Mediation Agreement dealing with issues such as confidentiality, admissibility and privilege in relation to documentation and information exchanged must be agreed in advance. The Mediation Agreement will also deal with the costs of the mediation including the mediator’s fees and will establish how these costs are to be shared between the parties. An appropriately qualified mediator will usually provide a draft Meditation Agreement and it can be amended to suit the parties wishes before being signed by each of the parties and the mediator.
This is standard practice for all of my mediations.My mediation agreement includes the time and location of the mediation; any known apparent conflicts; the rules of confidentiality; due dates for briefing the dispute and payment of fees.Generally, the fee is split between the parties but this can be modified by the parties.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
How to persuade others by orchestrating apologies?
How to you persuade others by orchestrating apologies? Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences. *
Orchestrating Apologies
Since most of my mediations are with parties that have on going relationships such as construction, business, and technology, I spend considerable time orchestrating apologies. In a business relationship reconciliation is necessary. To contradict the theme of the Godfather , “it is always personal and not strictly business”.
The time to orchestrate apologies can take several hours of effort. It is negotiation in itself. We need to find out what the offence is exactly. What form will the apology take? Who will apologize to whom? This includes who will be in the room when the apology is given. How much time will be allowed to deliver the apology and any response? And more importantly will the apology be accepted?
Once the time and effort is expended to orchestrate and deliver an apology, solutions to the problem often quickly come into focus. Often the amount in controversy drops quickly and precipitously.
Effectiveness
Apologies are more effective for a single transgression than for a series of transgression over time. But, in the event of a damaged relationship, there is tremendous potential for reconciliation and resolution of the conflict.
The effect of mere expressions of sympathy was dependent on the context. I avoid allowing this to happen. The punitive transgressor needs to know that they did wrong, what they did wrong and why it was wrong. Otherwise the other party could be offended and then dig in to their position if not deepen their position.
Full elaborate apologies are more effective that less elaborate ones. I spend effort setting the stage for the apology. It encourages reconciliation if both parties know what is going to happen.
The more serious the transgression or the greater the harm, the more elaborate the apology must be. This should be self evident. Sometimes, it is necessary to put the apology in writing and include it in the settlement agreement. Since the settlement agreement is usually confidential, there is no loss of face even if it is in writing.
Partial apologies can be unproductive or even counterproductive in the effects on the recipient. I do not encourage or allow partial apologies to take place. I’ve had the misfortune to have very good settlement blow up before they were signed because of a off-handed apology.
In case of less serious injuries less clear culpability or both, any apology even if complete may be better than none. Putting it simply, apologize for what you know you did wrong. Do not under any circumstances apologize for something you are not convinced was wrong. It is not a matter of assuming liability but the other party will not be convinced of your sincerity.
Full settlement apologies push plaintiff’s lawyers in a generally opposite direction. An apology executed correctly has a tendency to low the demands from the other side. If a plaintiff is on a contingence fee agreement, that will lower their pay day.
Why they work
Apologies helping disputants separate past (regrettable) acts from essential (positive) selfhood may be a highly effective form of self-persuasion. Apologies help resolve cognitive dissonance- dissonance effects are strongest (and self persuasion greatest) when actions are inconsistent with self concept of being a good person.
Risks
A successful apology requires skill and expertise. This can’t be emphasized enough. I spend considerable time testing the feasibility of an apology. I will even review it with the opposition before it is delivered.
How they work
If party accepts responsibility for causing injury to the other party, then the offended party makes more positive character related attribution towards the offender. Also, because of the regret, it changes assumptions about future behavior and expectations for the future relationship.
Apologies decrease anger towards the offender and increase sympathy for offender’s perspective especially if offender accepted full responsibility.
Presence or absence of apology affects on offenders parties ‘bottom line’ in legal negotiations well as the parties aspirations and opinion about what constitutes a fair settlement.
Recipients of apology reported less need to punish the other and greater willingness to forgive that those who did not receive apology.
Insincere apologies may actually cause people to react negatively.
*Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
**Why the picture of Cross Country runners? It takes a lot of persuasion to get them to the finish line.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
Induced cooperation is a form of persuasion. Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences. *
Induced Cooperation
In this form of self persuasion, parties work on a common task. These tasks are simple. I often conduct brainstorming sessions to generate all of the issues we need to resolve. It can also be a list of issues that there is an agreement. Conversely, it can be a list of where they do not see eye to eye.
They can be even simpler, such as a shared snack time. This is a time honored tradition in resolving conflicts. It could be a good reason why diplomats participate in a lot of social engagements. Sharing meals is central to the normal socialization in almost every community of humans.
How it works
This self persuasion works by getting the parties to work together and therefore build relationships and generate communication between each other. These can be very simple activities. I usually bring refreshments to the mediation. The act of sharing a meal builds relationships.
More commonly, while in joint session, I conduct some brainstorming activities. They might be a list of all that we need to accomplish before an agreement can be reached. In others, it could what areas or facts that both parties can agree upon. I would drill down to everything they could agree upon no matter how small.
Effectiveness
By keeping the conversation going, this may reduce demonization of the other party. Often they have been at odds since the complaint was filed which in our current day and age can be several years of no contact other than through attorneys.
This process appears to produce greater group cohesion and attitude change. It is a team building exercise. It is a team in search of a settlement agreement. The chief purpose is to generate more and effective communication in the group. When more ideas are verbalized, participates become more attentive to and accepting of other peoples views. Everyone becomes slightly friendlier with greater satisfaction with group process. It becomes a team building exercise with better coordination of effort and orientation to the achievement of the task. Furthermore, it reduces polarity. There is less focus on differences, greater focus on similarities and commonalities of viewpoints. There is increased ability to engage in flexible thinking and to find creative solutions generating reduced egocentrism and increased ability to take the perceptions of others.
How to use it
I used induced cooperation in all stages of my mediation sessions. And I will use it in any way I can. They more I am able to get the real parties to talk to me and more importantly to each other the more likely there will be a solution to the conflict.
*Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
**Why the picture of Cross Country runners? It takes a lot of persuasion to get them to the finish line.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences. *
Persuade Using Fear Appeals
Being human, we all have fears. Fear of snakes, spiders, public speaking, etc. We have fears that no one likes us, or will accept us. These are not the fears that I use in a mediation to settle a conflict. Often we do have a fear of the future. What I do is to persuade by fear of the consequences of not settling. I describe in detail the threat and consequences of inaction at the mediation session. I also give each party reasonable assurance the threat can be averted through their conduct taken in mediation.
There is plenty to fear in not resolving a dispute in mediation. There is the financial cost of further endless litigation. There is the loss of time spent in litigation and just sitting around in court waiting.
There is a real fear in most people of having to testify in open court. Once in mediation, one party was shocked to learn that the opposition attorney would grill her and paint her as a liar ruining her reputation. There is also the loss of choice. And there is the fear of loss of control.
How it works
This is a form of direct persuasion. It works best when the threat is described in detail and there is guidance on the actions to be taken to avoid it.
Effectiveness
Appeals that generate the most fear can be the most effective, so long as they convey both serious problems and strong feasible solutions.
Why they work
This process triggers thoughtful appraisal instead of mere emotion, which can neutralize defensive avoidance mechanisms. It neutralizes defensive tendencies such as anger, overconfidence or denial that may be getting in the way of logical thought. It also triggers thinking both about the threat and the subject’s ability to avert it
*Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
About the Author:Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?
Absolutely not! I as mediator form opinions on many issues for many reasons.
One of the primary things I do as mediator is to help you to evaluate the pros and cons of your position in a dispute and provide you with the information you need in order to make an educated decision about resolution. My opinion is critical to this process and will likely be based on the totality of the information from both sides, not merely that of one party. Although because of confidentiality, I may not be able to disclose the information to you, having an opinion from an unbiased source, based on such information may be very helpful to you in making choices.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
About the Author:Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences .
How do you change someone’s mind if you think you are right and they are wrong?
We normally resort to the following: “You are, I’m afraid to say, mistaken. The position you are taking makes no logical sense. Just listen up and I’ll be more than happy to elaborate on the many, many reasons why I’m right and you are wrong. Are you feeling ready to be convinced?”
No matter the subject, this is the approach many of us adopt when we try to convince others to change their minds. It’s also an approach that often leads to the person you are trying to persuade to harden their existing position. Research suggests there is a better way. It is a way that involves more listening, and less trying to beat your opponent into submission.
Yale researchers, Leonid Rozenblit and Frank Keil suggested that in many instances people believe they understand how something works when in fact their understanding is superficial at best. They called this phenomenon “the illusion of explanatory depth”. They began by asking their study participants to rate how well they understood how things like flushing toilets, car speedometers and sewing machines worked, before asking them to explain what they understood and then answer questions on it. The effect they revealed was that, on average, people in the experiment rated their understanding as much worse after it had been put to the test.
What happens, argued Rozenblit and Keil, is that we mistake our familiarity with these things for the belief that we have a detailed understanding of how they work. Usually, nobody tests us and if we have any questions about them we can just take a look. Psychologists call this idea that humans have a tendency to take mental short cuts when making decisions or assessments the “cognitive miser” theory.
Why would we bother expending the effort to really understand things when we can get by without doing so? The interesting thing is that we manage to hide from ourselves exactly how shallow our understanding is.
This is a phenomenon that will be familiar to anyone who has ever had to teach something. Usually, it only takes the first moments when you start to rehearse what you’ll say to explain a topic, or worse, the first student question, for you to realize that you don’t truly understand it. Teachers often say to each other “I didn’t really understand this until I had to teach it”. Inventor Mark Changizi quipped: “I find that no matter how badly I teach I still learn something”.
How “Explain yourself” can be used to persuade others.
A research team, led by Philip Fernbach, of the University of Colorado, reasoned that the phenomenon might hold as much for political understanding as for things like how toilets work. They hypothesized that people who have strong political opinions would be more open to other viewpoints, if asked to explain exactly how they thought the policy they were advocating would bring about the effects they claimed it would.
Recruiting a sample of Americans via the internet, they polled participants on a set of contentious US policy issues, such as imposing sanctions on Iran, healthcare and approaches to carbon emissions. One group was asked to give their opinion and then provide reasons for why they held that view. They got the opportunity to put their side of the issue, in the same way anyone in an argument or debate has a chance to argue their case.
Those in the second group did something different. They were asked to explain how the policy they were advocating would work. They were asked to trace, step by step, from start to finish, the causal path from the policy to the effects it was supposed to have.
The results were clear. People who provided reasons remained as convinced of their positions as they had been before the experiment. Those who were asked to provide explanations softened their views, and reported a correspondingly larger drop in how they rated their understanding of the issues.
Therefore listening to detailed explanations regarding how their idea will work will soften their position at the very least.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
About the Author:Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
What am I actually getting for my money when I hire a mediator?
When you hire me as your mediator, you are buying the opportunity, through a neutral third party, to evaluate with someone who is an objective “sounding board,” your real needs (personal, economic, spiritual, etc.) and to evaluate which dispute resolution process will best help you meet those needs.
* You are buying my opinions and impressions of “your first juror,” as to existing information/evidence and that which is non-existent.
* You are buying an opportunity to become more informed of the risks and benefits involved in resolving or litigating a dispute.
* You are buying an opportunity to address and resolve differences of opinion or expectation between you and your client, you and other professionals or between several clients (business partners, etc.).
* In addition, you are buying many things that can’t be quantified, unique to your particular dispute, which come with the intervention of an experienced neutral.
I am usually hired as a mediator because of my perceived ability to resolve a dispute.
Mediators don’t settle cases, parties do! What you are really buying are choices. My value as a mediator is my expertise in guiding all of the parties involved in a dispute to a point where there are new, real and often difficult choices created. It is up to you to evaluate those choices, in light of the insights you gain through the mediation process, and choose that one which will end the dispute in the manner that brings you the most complete resolution. In getting to that point, whether that choice is to accept a proposed settlement or continue on the path to litigation, you have gotten “your money’s worth”.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
Most Mediators describe themselves as being a neutral. It doesn’t help that the courts and clients expect us to be neutral and describes us as such. But mediators in Europe have difficulty with the description.
In the German Language the term for neutral most closely translates back into English as ‘null’. So translating it back to English, to be a null means a Mediator as a neutral is without value, effect, consequence, or significance. Further more a Mediator amounts to nothing and is nonexistent. In math when a variable has no value, it is considered to be null. Having a null value is different than having a value of zero, since zero is an actual value.
No wonder Europeans have had difficulties with the term neutral. I am much more than a zero let alone a null. The German term used to describe what a Mediator does is a better description of what I do without speaking German. Their term encompasses the following ideas:
I’m parcel to everyone equally.
I’m acting for everyone and in everyone’s best interest.
I advocate for a just solution to the dispute.
I’m attentive to all the interests of the parties.
This concept is better idea of what I am as a mediator. I am not a potted plant just sitting there all day hoping that a solution pops up. I work hard with the parties to find a just solution in a timely manner.
Thanks to my Mediation Society Colleagues, Bruce Edwards, Patrice Prince and Dana Curtis for sharing this idea. They attended the International Summer School on Business Mediation in Admont, Austria this last summer.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
About the Author:Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
Lawyers need to understand the basic definition of a tweet. Twitter is only one aspect of Social Media that Legal Professionals need to master. My Project Social Media presents my thoughts regarding the impact of social media marketing on the practice of law. See my page to for more information.
What is a Tweet?
A tweet is 140 characters long. This is the bane of the legal community and any one that appreciates proper English, although a tweet can be in any language. We in the legal community have a tendency to be verbose. We want to add a lot of wherefore’s and whereas’ to clarify what we are trying to communicate. You can’t do that in 140 characters. About the only thing you can communicate is a headline. Good grammar goes down the drain. If you start to think in headlines you will start to get the hang of Twitter.
Here’s the real limit. A space is a character. A period is a character. So a period and two spaces between two sentences is a total of three characters. A special character is also a character. So that quote marks and apostrophes count towards the 140 limit.
This be comes problematic when you want, and you do want, to link to a website. Website addresses are long by their very nature. They, without difficulty will push you over the 140 limit. Services have developed to help circumvent this problem by shortening a URL. The added advantage is that they will also track how many times the link on your tweet is accessed.
You also do not want to use all 140 characters for your tweet because it will limit the ability of someone to retweet your tweet. We will deal with retweeting later.
**Why the picture of flowing water? Twitter is a constant flow of information and communications.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
It is assumed that a retired judge makes a better mediator than someone that has not been a judge.This couldn’t be further from the truth.
Rendering judgment requires an entirely different skill set than helping the parties resolve their case through mediation. The day to day activities of a judge do not lend themselves to facilitating the resolution of conflicts.The basic skill that is useful to a judge but not a mediator is the ability to make quick and final decisions on any particular issue. Therefore when they approach mediation they want to make the decision and not let the parties control their own solution to the problem.
It is assumed that 20-years on the bench translates to 20-years experience working with civil attorneys and parties and the issues of civil litigation.In most courts today, very few judges are presiding over civil trials.Most of their days as spent presiding over criminal trials.Even the remaining time of their tenure on the bench is divided between family law, juvenile, probate, and traffic.
The law practice of most judges before being appointed to the bench is not as a civil attorney.Many were deputy district attorneys or public defenders before becoming judges.Therefore they have no experience with any civil issues before becoming judges.
Mediation is a voluntary process that centers on discussions and decision-making, rather than judgment by a judge or retired judge. It is focused on resolving disputes based on the factual circumstances, the needs of the parties and practicality, and not solely on the legal rights of the parties. Often, the mere presence of a retired judge creates an antagonistic and adversarial atmosphere that impedes resolution rather than assisting it.
In reality you want a mediator such as me that is trained in helping the parties resolve their problems.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
